Environmental Law Initiative v Director-General of the Department of Conservation

[2025] NZHC 391

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-383

[2025] NZHC 391

IN THE MATTER

of an application for judicial review under the Judicial Review Procedure Act 2016

UNDER

the Declaratory Judgments Act 1908

BETWEEN

ENVIRONMENTAL LAW INITIATIVE

Applicant

AND

THE DIRECTOR-GENERAL OF THE DEPARTMENT OF CONSERVATION

First Respondent

WAKA KOTAHI NZ TRANSPORT AGENCY

Second Respondent

THE MINISTER OF CONSERVATION

Third Respondent

THE MINISTER OF TRANSPORT

Fourth Respondent

AND

TE RŪNANGA O NGĀTI TAMA

Intervenor

Hearing:

2 and 3 September 2024

Appearances:

D Bullock and R E King for Applicant

J B Y Cheng, S J Jensen and S J Edwards for First, Third and Fourth Respondents

P T Beverley and H T Markham-Nicklin for Second Respondent P F Majurey and V N Morrison-Shaw for Intervenor

Judgment:

5 March 2025

JUDGMENT OF McHERRON J

ENVIRONMENTAL LAW INITIATIVE v THE DIRECTOR-GENERAL OF THE DEPARTMENT OF CONSERVATION [2025] NZHC 391 [5 March 2025]

Table of contents

ELI challenges decisions affecting wildlife in the construction of the Mt Messenger Bypass[1]

Ngāti Tama — intervener[6]

Decisions challenged by ELI[8]

Legislative context[10]

The s 53 Authority given in relation to the New Road[21]

The approach to s 53 generally[21]

Section 53 Authority in respect of the New Road[25]

ELI expresses concerns about the s 53 Authority; in response, the Department of

Conservation agrees consent under s 71 is required[30]

Waka Kotahi applies for consent under s 71[32]

Ministerial briefing paper for s 71 decision[33]

Causes of action in ELI’s claim[46]

First cause of action[47]

Ngāti Tama submissions in relation to ELI’s first cause of action  [52]

Second (alternative) cause of action[54]

Third (alternative) cause of action[57]

Fourth and fifth causes of action[58]

My assessment[62]

First cause of action[62]

Second and third causes of action[100]

Fourth and fifth causes of action: reconciling s 53 and s 71 of the Wildlife Act[101] Fourth cause of action  [111]

Fifth cause of action  [118]

Conclusion[139]

Costs[140]

ELI   challenges    decisions    affecting   wildlife    in    the    construction    of   the Mt Messenger Bypass

[1]    Waka Kotahi | NZ Transport Agency (Waka Kotahi) is building a new road, Te Ara o te Ata: Mt Messenger Bypass (the New Road). The New Road is an alteration of State Highway 3 to bypass Mt Messenger, connecting northern Taranaki with the Waikato. It will traverse around six kilometres from Uruti to Ahititi, removing the existing steep, narrow and winding route over Mt Messenger and replacing it with a shorter and safer road, situated amongst native bush and wetlands. The New Road is part of a broader Awakino Gorge to Mt Messenger development programme.

[2]    The Director-General of Conservation, the Minister of Conservation and the Minister of Transport, the first, third and fourth respondents (who I refer to collectively

as the Crown) respectively acknowledge that construction of the New Road will result in various fauna, including absolutely or partially protected wildlife under the Wildlife Act 1953, being disturbed or killed. These impacts could occur through steps taken to minimise harm to wildlife (for example, capture and relocation). Waka Kotahi requires permission under the Wildlife Act to undertake those activities in respect of wildlife.

[3]    The present challenge is by Environmental Law Initiative (ELI), a charitable trust board engaged in researching and reviewing environmental legislation and policy and funding scientific research. ELI challenges Wildlife Act authorisations in relation to the New Road made by the Crown.

[4]    The second respondent, Waka Kotahi, is joined because it has an interest in the decisions challenged. However, ELI seeks no relief against Waka Kotahi.

[5]    Despite ELI’s challenge, it states it is not opposed to the New Road and does not challenge:

(a)its ongoing construction;

(b)the ongoing implementation of the environmental mitigation works (including pest reduction and habitat restoration contained in the Ecology and Landscape Management Plan 2019 (ELMP) as required by the resource consent and planning designations associated with the construction of the New Road;

(c)the cultural mitigation package offered to and accepted by Te Rūnanga o Ngāti Tama in return for the use of land for the New Road.

Ngāti Tama — intervener

[6]    Te Rūnanga o Ngāti Tama intervened in the proceeding to ensure Ngāti Tama’s reo is heard.1 Ngāti Tama is mana whenua over an area in Taranaki spanning from the

1      Environmental Law Initiative v Director-General of the Department of Conservation HC Wellington CIV-2023-485-383, 4 March 2024 (Minute of Grice J). Te Rūnanga o Ngāti Tama

Mōkau River in the north to the Tītoki stream in the south, including the entire footprint of the Te Ara o te Ata project. Ngāti Tama has a centuries-old relationship with the whenua in northern Taranaki. Much of the private land used for the New Road is Ngāti Tama Treaty Settlement land.2 The project area includes mahinga kai sources of birds and fish. Kiwi, kahurangi, kererū, tuna, inanga and the pāua slug were traditional resources found there.3

[7]    In an exercise of rangatiratanga, Ngāti Tama agreed to make their land available to Waka Kotahi for the New Road. Ngāti Tama has been involved in all aspects of the project, including at a governance level as part of  the  Project  Alliance Board charged with completing the project, and is integrated into the Alliance Leadership Team and site teams. Throughout, Waka Kotahi has endeavoured to act with the utmost care and respect for Ngāti Tama’s interests.

Decisions challenged by ELI

[8]    Decisions on resource consents and a recommendation in respect of a notice of requirement to alter the State highway designation were made in 2018. An independent commissioner granted the consents and confirmed the designation, subject to conditions.  The Environment Court dismissed appeals in 2019.4  The  High Court dismissed further appeals in 2020.5 The Environment Court issued its final decision in 2021. Construction of the New Road began in October 2022. ELI does not challenge any of these decisions.

[9]    Rather, the decisions ELI challenges are significant incidental decisions concerning wildlife affected by the New Road’s construction:

Trust is Ngāti Tama’s mandated representative body for Ngāti Tama iwi and post-Treaty settlement governance entity: see Ngāti Tama Claims Settlement Act 2003, s 9 definition of “governance entity”.

2      Ngāti Tama Claims Settlement Act, sch 1. In particular, 22 ha of Ngāti Tama land is being used for the New Road itself, 15.9 ha is being used for a temporary period during construction, and 1,590 ha is (for at least 35 years, potentially in perpetuity) to be used for pest management as part of the project’s environmental restoration package.

3      Schedule 4.

4      Director-General of Conservation v Taranaki Regional Council [2019] NZEnvC 203.

5      Poutama Kaitiaki Charitable Trust v Taranaki Regional Council [2020] NZHC 3159.

(a)a decision by the Director-General of Conservation in December 2021 to grant an authority to Waka Kotahi under s 53 of the Wildlife Act to catch alive and kill wildlife during construction of the New Road (s 53 Authority).  ELI’s  challenge is limited to the “kill” component of the s 53 Authority. ELI accepts the Director-General was entitled to authorise the catching alive of wildlife under s 53;6 and

(b)a decision by the Minister of Conservation and the Minister of Transport in August 2023 to grant a consent under s 71 of the Wildlife Act, authorising the same activities affecting protected wildlife as the s 53 Authority purports to do (s 71 Consent).

Legislative context

[10]   The Wildlife Act is the principal means by which wildlife in New Zealand, including many of its most endangered species, is protected.7 It is “the mainstay of statutory protection of animals in the environment”.8

[11]   The Wildlife Act regulates human activities involving wildlife. The Act variously provides for the protection of wildlife, the control of wildlife, and the regulation of game shooting seasons. “Wildlife” is broadly defined as any animal that is living in a wild state.9 “Animal” is defined as any mammal, bird, reptile or amphibian.10

[12]   The Wildlife Act creates a tiered scheme of protection.11 Section 3 states the default rule, subject to the provisions of the Act, that all wildlife, other than as provided for in schs 1–5, is absolutely protected throughout New Zealand and its fisheries

6      The s 53 Authority purports to authorize the killing of 46 species of protected wildlife (including North Island brown kiwi, and threatened species such as the Australasian bittern, banded dotterel, the long-tailed bat, and Archey’s frog).

7      Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111, [2019] 1 NZLR 791 at [45].

8      At fn 72 per Winkelmann CJ, for herself, William Young, Glazebrook and O’Regan JJ. Ellen France J, writing separately, stated at [125] that she agreed in general with Winkelmann CJ’s approach to the interpretation of the relevant provisions of the Wildlife Act.

9      Wildlife Act, s 2.

10 Section 2. Domestic animals (defined in s 2), domestic birds (defined in s 2), rabbits, hares, seals and marine mammals are excluded from the definition; invertebrates and marine mammals are included if declared to be an animal under ss 7B and 7BA, respectively.

11 Shark Experience Ltd v PauaMAC5 Inc, above n 7, at [10].

waters. From that default absolute protection status, other provisions including those schedules carve out certain groups of wildlife with lesser (or no) protection.12

[13]   The following provisions from the Wildlife Act are especially relevant to the issues arising in ELI’s application for review.

[14]   Partially and absolutely protected wildlife receive protection under s 63 of the Wildlife Act, which relevantly provides that no person may hunt or kill any absolutely protected, or partially protected wildlife without lawful authority, and that doing so is an offence:

63     Taking protected wildlife or game, etc

(1)No person may, without lawful authority,—

(a)      hunt or kill any absolutely protected or partially protected wildlife or any game:

(b)      buy, sell, or otherwise dispose of, or have in his or her possession any absolutely protected or partially protected wildlife or any game or any skin, feathers, or other portion, or any egg of any absolutely protected or partially protected wildlife or of any game:

(c)      rob, disturb, or destroy, or have in his or her possession the nest of any absolutely protected or partially protected wildlife or of any game. absolutely protected or partially protected wildlife or of any game.

(1A) Every person who contravenes subsection (1) commits an offence and,—

(a)      in respect of an offence committed in relation to absolutely protected wildlife, is liable on conviction to the penalty set out in section 67A(1):

12 Schedule 1 lists wildlife declared to be game, which is the subject of pt 2 of the Wildlife Act. Schedule 2 lists partially protected wildlife.

Schedule 3 lists wildlife that may be hunted or killed subject to the Minister’s notification.

Schedule 4 concerns wildlife that is not protected, except in areas and during periods specified in the Minister’s notification (no wildlife are currently listed in sch 4).

Schedule 5 lists wildlife that is not protected.

The Act also contains the following additional groupings of animals that are not relevant in the present case: Section 5 provides that certain wildlife, as specified in sch 2, is declared to be partially protected. Section 7A and sch 6 concern wild animals which are subject to the Wild Animals Control Act 1977. Section 7B and sch 7 concern terrestrial and freshwater invertebrates that are declared to be animals. Section 7BA and sch 7A concern marine species declared to be animals. Section 7C and sch 8 prohibit farming of certain unprotected animals unless authorised by the Minister or by regulations.

(b)      in respect of an offence committed in relation to partially protected wildlife, is liable on conviction to the penalty set out in section 67C(1):

(c)      in respect of an offence committed in relation to game, is liable on conviction to the penalty set out in section 67E(3).

(2)Nothing in subsection (1) applies in respect of any marine wildlife.

[15]   Section 68AB(2) provides that the offence in s 63 is a strict liability offence, but s 68AB(3) provides a defence:

68AB Mens rea and strict liability offences

…

(3)It is a defence in any prosecution for an offence not listed in subsection

(5) if the defendant proves—

(a)that the defendant did not intend to commit the offence; and

(b)that,—

(i)      in any case where it is alleged that anything required to be done was not done, the defendant took all reasonable steps to ensure that it was done:

(ii)     in any case where it is alleged that anything prohibited was done, that the defendant took all reasonable steps to ensure that it was not done.

…

[16]   Central to ELI’s challenge are two sections in the Wildlife Act, ss 53 and 71, each of which provides a means of authorising actions affecting wildlife that are ordinarily prohibited. Both sections have been employed as part of the decision- making relating to the New Road. The present case primarily concerns the relationship between these sections and which of them was appropriately relied on.

[17]The first of these two sections, s 53(1), relevantly provides:

53 Director-General may authorise taking or killing of wildlife for certain purposes

(1) The Director-General may from time to time in writing authorise any specified person to catch alive or kill for any purpose approved by the Director-General any absolutely protected or partially protected

wildlife or any game or any other species of wildlife the hunting or killing of which is not for the time being permitted.

…

[18]   The second of these authorising sections, s 71, disapplies the Wildlife Act in circumstances where the Minister of Conservation and the Minister charged with the administration of the relevant Act listed in sch 9 give their consent to do any act or exercise any authority under any such Act in respect of any wildlife (other than unprotected wildlife):13

71     Saving of other Acts

Except where this Act otherwise provides, nothing in this Act shall derogate from any provision of any of the Acts specified in Schedule 9:

provided that, except with the prior consent of the Minister of Conservation and the Minister charged with the administration of the Act under which the act or authority is performed or exercised, and subject to such conditions as those Ministers may jointly impose, no person shall be entitled to do any act or exercise any authority under any such Act in respect of any wildlife (other than unprotected wildlife) or in respect of any land forming part of a wildlife sanctuary:

provided also that nothing in any such Act shall derogate from the provisions of paragraph (f) of subsection (1) of section 39 (which relates to the powers of rangers to enter on any land).

[19]   One of the Acts listed in sch 9 of the Wildlife Act is the Government Roading Powers Act 1989 (GRP Act). That Act provides Waka Kotahi with powers in relation to the construction, operation and maintenance of State highways.14

[20]Also relevant are some of the definitions in s 2 of the Wildlife Act, including:

animal means any mammal (not being a domestic animal or a rabbit or a hare or a seal or other marine mammal), any bird (not being a domestic bird), any reptile, or any amphibian; and includes any terrestrial or freshwater invertebrate declared to be an animal under section 7B and any marine species declared to be an animal under section 7BA; and also includes the dead body or any part of the dead body of any animal

13 Schedule 9 lists the following Acts, under the heading “Acts not affected by this Act”: Coal Mines Act 1979, Fisheries Act 1908, Forest and Rural Fires Act 1977, Government Railways Act 1949, Government Roading Powers Act 1989, Mining Act 1971, National Parks Act 1980, Peel Forest Act 1926, Petroleum Act 1937, Works Act 1928, Rabbits Act 1955, Reserves Act 1977, Soil Conservation and Rivers Control Act 1941, Tramways Act 1908, Waitangi Endowment Act 1932– 33, Waitangi National Trust Board Act 1932.

14 See Government Roading Powers Act 1989, s 61. Section 61(4) empowers Waka Kotahi to “to do all things necessary to construct and maintain in good repair any State highway”.

…

hunt or kill, in relation to any wildlife, includes the hunting, killing, taking, trapping, or capturing of any wildlife by any means; and also includes pursuing, disturbing, or molesting any wildlife, taking or using a firearm, dog, or like method to hunt or kill wildlife, whether this results in killing or capturing or not; and also includes every attempt to hunt or kill wildlife and every act of assistance of any other person to hunt or kill wildlife

…

wildlife means any animal that is living in a wild state; and includes any such animal or egg or offspring of any such animal held or hatched or born in captivity, whether pursuant to an authority granted under this Act or otherwise; but does not include any animals of any species specified in Schedule 6 (being animals that are wild animals subject to the Wild Animals Control Act 1977)

The s 53 Authority given in relation to the New Road

The approach to s 53 generally

[21]   The Supreme Court had its first opportunity to consider the Wildlife Act in depth in Shark Experience Ltd v PauaMAC5 Inc. That case related to the business of shark cage diving. The primary issue was whether that activity constituted “hunting or killing” the sharks and was an offence under s 63A of the Wildlife Act.15

[22]   Before the case reached the Supreme Court, the Court of Appeal had been satisfied that shark cage diving is “pursu[ing] or disturb[ing]” great white sharks and therefore is “hunt[ing]” or “kill[ing]” them within the meaning of s 63A.16 The Court of Appeal used that finding as the basis for declaring that shark cage diving was an offence under s 63A of the Act.17

[23]   The Supreme Court unanimously held that the Court of Appeal was correct in finding that the phrase “hunt or kill” has a broader definition than the natural sum of its individual words but was wrong in using that finding as the basis for a declaration

15 The offence provision considered in Shark Experience, above n 7, s 63A of the Wildlife Act, was inserted into the Wildlife Act by the Fisheries Act 1996 and relates specifically to marine wildlife, giving effect to New Zealand’s obligations under the Convention on Conservation of Migratory Species of Wild Animals 1979. Section 63A is the equivalent to s 63, but as pertains to absolutely or partially protected marine wildlife. See Marcello Rodriguez Ferrere and Nicola Wheen “Shark Experience Ltd v PauaMAC5 Inc: Missed Opportunities” (2020) 29 NZULR 181 at 185.

16 PauaMAC5 v Director-General of Conservation [2018] NZCA 348, [2019] 2 NZLR 1 at [44].

17 At [48].

that shark cage diving was an offence.18 The Supreme Court’s was non-committal on whether shark cage diving was an offence under the Wildlife Act; it would turn on the facts and there was an evidential deficiency. But the Supreme Court judgment sets out principles by which the lawfulness of a future shark cage diving operation could be assessed.19

[24]   The Supreme Court read the scope of s 53 as constrained by the Wildlife Act’s purpose:20

The power to authorise under s 53 is, on the bare words of the provision, relatively unconstrained. It appears that the catching alive or killing authorised may, in accordance with the wording of s 53, be for any purpose approved by the Director-General of Conservation. But, in reality, the power to authorise is constrained by the purpose of the Act, wildlife protection, and most relevantly, for the purpose of this appeal, protection of great white sharks, or any other purpose consistent with the Act.

Section 53 Authority in respect of the New Road

[25]   The Director-General’s s 53 Authority in respect of wildlife located on non- public conservation land being used to build the New Road was made on 22 December 2021. It was signed on behalf of the Director-General of Conservation by the Hauraki, Waikato, Taranaki Operations Director of the Department of Conservation (DoC), acting under delegated authority.

[26]   The background section of the s 53 Authority noted that Waka Kotahi (defined as the Authority Holder) would implement a significant effects management package to address the adverse effects associated with the “Project” (defined as a bypass the Authority Holder proposes to construct “of around 6km from Uruti to Ahititi”).

[27]   With respect to the effects on wildlife, the s 53 Authority stated that “technical experts advised that the effects management package will promote the protection of protected wildlife”.

[28]The s 53 Authority purported to authorise the following activities:

18     Shark Experience v PauaMAC5 Inc, above n 7, at [120].

19 At [117].

20     At fn 72.

(i)To catch or otherwise obtain alive, possess and liberate protected wildlife identified in Schedule 4 for the purpose of species management.

(ii)To kill protected wildlife identified in Schedule 5 during construction.

(iii)To take or otherwise obtain the eggs of North Island brown kiwi apteryx mantelli.

(iv)To catch alive the protected wildlife listed under Schedule 6 for the purpose of rehabilitation.

[29]   Standard terms and conditions were set out in sch 2 of the s 53 Authority, and special conditions were set out in sch 3. Schedule 4 listed the protected wildlife that can be caught alive to be liberated “for the purpose of species management” under the s 53 Authority. Schedule 5 listed protected wildlife that can be killed during construction of the road. Schedule 6 listed protected wildlife that can be caught alive “for the purpose of rehabilitation”.

ELI expresses concerns about the s 53 Authority; in response, the Department of Conservation agrees consent under s 71 is required

[30]   Construction of the New Road began in October 2022. At the end of that month, ELI conveyed to DoC and Waka Kotahi its concerns about the lawfulness of the s 53 Authority. ELI stated that permitting wildlife to be killed to facilitate road building does not accord with the protective purpose of the Wildlife Act. This communication prompted DoC to reconsider whether it had correctly authorised Waka Kotahi’s activities affecting protected wildlife under the Wildlife Act.

[31]   On 24 January 2023, in response to ELI’s concerns, DoC’s National Operations and Regulatory Services Manager wrote to Waka Kotahi that “[g]iven that state highway construction appears, at least in part, to be undertaken under the [GRP Act], this would mean that a consent under s 71 is required.” The letter acknowledges that “this possible change in position would be significant, given the number of s 53 authorisations that have been issued for state highway projects.”

Waka Kotahi applies for consent under s 71

[32]   Waka Kotahi applied for a s 71 Consent on 28 April 2023, but it did so “entirely without prejudice to Waka Kotahi’s position that the section 53 permits were validly

granted and that Waka Kotahi can continue to rely on them as lawful authority under the Wildlife Act”.

Ministerial briefing paper for s 71 decision

[33]   A briefing on the s 71 decision was submitted to the Ministers on 25 August 2023. The briefing advised them that the Director-General’s delegate had previously granted an authority under s 53 of the Wildlife Act, but that “[i]t has subsequently transpired that the joint consent of the Minister of Conservation and the Minister of Transport is required under s 71 of the Wildlife Act in place of the authority under s 53”. Officials advised that “[a]n authority under s 53 is not a valid substitute for consent under s 71”. Ministers were advised they must:

… try and achieve the purpose of the Wildlife Act and the Government Roading Powers Act to the greatest extent, including, if consent were granted, through considering the use of conditions imposed on the consent. You must then weight the detriments to protected wildlife and the countervailing benefits of the Project in order to decide whether to grant consent on that basis.

[34]   Ministers were provided with an extensive Ecology and Landscape Management Plan (the 2021 ELMP) setting out the potential effects on wildlife and management plans for wildlife detection, capture and relocation, including measures to protect wildlife from injury and mortality. The ministerial briefing summarises expected effects on North Island brown kiwi, kōkako, long-tailed bats and striped skinks. The briefing warns Ministers there may be incidental killing of protected wildlife that could not be detected, caught and relocated. Moreover, consent was sought to destroy eggs of any wildlife other than kiwi eggs. Proposed conditions generally reflecting the ELMP, and aiming to protect and preserve as much wildlife as possible were included in the draft consent provided to Ministers. These conditions are summarised in the ministerial briefing.

[35]   The ministerial briefing paper describes the objectives of the project to build the New Road, including to:

(a)reduce the number of deaths and serious injuries from motor vehicle crashes;

(b)reduce the number of road closures and improve journey time and “drivers’ experience”;

(c)make the transport system, safer, more effective and more efficient; and

(d)enhance local and regional economic growth and productivity for people and freight.

[36]   Ministers were advised that the project to build the New Road is consistent with the relevant purpose of the GRP Act, being the construction of State highways in the public interest.

[37]   The briefing paper also describes initiatives included in the project to build the New Road, such as an environmental restoration and pest management programme in perpetuity across an area of 3,650 ha, involving control of rats, possums, feral cats, mustelids, feral goats and pigs, to offset the effects of construction and operation of the New Road.

[38]   The briefing paper notes that the Wildlife Act is to be interpreted and administered to give effect to the principles of the Treaty of Waitangi.21 Ministers were advised that:

The principles of the Treaty require good faith and reasonable action by both parties in context (the partnership principle). This necessarily requires, on the Crown’s part, properly informed decision-making. The Crown is also under  a positive obligation to actively protect Māori property interests and taonga under Article II of the Treaty (the principle of active protection).

The principles contemplate a balancing of tangata whenua and other interests and the ability of the Crown to decide from a number of options provided it acts reasonably and in good faith (which, as above, requires properly informed decision-making).

21 Ngāti Tama notes that even though the Wildlife Act does not itself include a Treaty provision, it is subject to s 4 of the Conservation Act (“This Act shall so be interpreted as to give effect to the principles of the Treaty of Waitangi.”) because the Wildlife Act is listed in sch 1 of the Conservation Act: see Ngāi Tai ki Tāmaki Tribal Trust v Minister of Conservation [2018] NZSC 122, [2019] 1 NZLR 368 (SC) at [48], [76]–[77] and [54]; Ngāi Tahu Māori Trust Board v Director-General of Conservation [1995] 3 NZLR 553 (CA) at 558.

[39]   The briefing paper advises engagement between Waka Kotahi and Ngāti Tama had occurred at several levels and in different forums. Te Rūnanga o Ngāti Tama, as project partner, endorsed the project to build the New Road and the proposals submitted to manage impacted protected wildlife in accordance with the ELMP. Ngāti Tama had input into route selection and agreed a comprehensive mitigation package for the pest management strategy in the area providing for:

…the relationship of Ngāti Tama with their ancestral lands and taonga and to avoid, remedy or mitigate adverse effects of the project on Ngāti Tama and their ancestral lands and taonga.

[40]   Ministers were advised they would need to weigh detriments to wildlife, as reduced to the greatest extent by conditions, against the benefits of the project.

[41]   Both Ministers initialled the  briefing  paper,  noting  that  the  fact  that  Waka Kotahi had previously been granted the s 53 Authority was irrelevant to their decision.

[42]   Ministers granted the s 71 Consent on 31 August 2023. It has the same conditions as the s 53 Authority, but with additional conditions relating to reporting.

[43]   Broadly, the  s  71  Consent  purports  to  allow  the  same  activities  as  the  s 53 Authority. In addition, the s 71 Consent purports to authorise Waka Kotahi:

(v)To mark by way of radio transmitters for the purpose of distinguishing any wildlife, the wildlife listed under Schedule 8.

[44]   In its original form, the s 71 Consent was backdated to 1 January 2023. However, the Director-General’s position is that this backdating was a typographical error. She says the Ministers never intended the s 71 Consent to operate retrospectively. The Crown submits that as the s 71 Consent was not provided retrospectively in fact, the issue of whether such consent could be provided retrospectively does not arise for the Court to determine.

[45]   On 27 and 29 August 2024, a revised s 71 Consent was signed.22 The most significant change was to amend the commencement date to 31 August 2023.

Causes of action in ELI’s claim

[46]   ELI’s claim contains five causes of action. The first three causes of action challenge the s 53 Authority.   The fourth and fifth causes of action challenge the     s 71 Consent.

First cause of action

[47]   In its first cause of action, ELI alleges that the s 53 Authority was unlawful, and the Director-General had no power to grant it. As mentioned, ELI is only challenging the s 53 Authority to the extent it purports to authorise the killing of wildlife. ELI submits that a “kill” authority for non-conservation purposes can only be granted under s 71. However, ELI accepts that the authority to “catch alive” certain wildlife was lawfully granted under s 53.

[48]   As  mentioned  above  (at  [24]),  the  Supreme  Court  has  determined   that s 53 authorities must be consistent with the protective purpose of the Wildlife Act.23

[49]   Generally, ELI submits that the following relationship exists between ss 53 and 71:

(a)Section 71 permits killing of protected wildlife in connection with certain non-conservation purposes (namely, the purpose of each of the sch 9 Acts).

(b)However, s 53 only allows the authorisation of killing if that killing is for the purposes of conservation.

[50]   ELI seeks a declaration that the s 53 Authority is unlawful and asks the Court to set it aside.

22     By the Secretary for Transport and the Director-General of Conservation under delegated authority.

23     Shark Experience v PauaMAC5 Inc, above n 7, at [46].

[51]   ELI also seeks a declaration that s 53 does not empower the Director-General to grant authorities for activities that involve the hunting or killing of absolutely and partially protected wildlife where that is not consistent with the Wildlife Act’s protective purpose.

Ngāti Tama submissions in relation to ELI’s first cause of action

[52]I received helpful submissions on behalf of Te Rūnanga o Ngāti Tama that:

(a)As Ngāti Tama Treaty Settlement land is involved in the Te Ara o te Ata project to build the New Road, the decision-makers were therefore required to properly consider iwi interests and the principles of Te Tiriti o Waitangi | The Treaty of Waitangi in their decision-making processes.

(b)The decision-making process followed by the first respondent for the  s 53  Authority  and  by  the  third  and  fourth   respondents   for  the  s 71 Consent were lawful, correctly considered all relevant factors including Ngāti Tama’s views and ecological restoration measures, and in doing so gave effect to Treaty principles. In particular, Ngāti Tama refers to three overarching Treaty principles of partnership, active protection and redress, as relevant.24

(c)Tikanga is an integral part of the relevant legal framework for the Court to consider in determining the present proceeding. ELI’s narrow interpretation of the protective and conservation purposes of the Wildlife Act is, according to Ngāti Tama, inconsistent with tikanga and based on a monocultural lens which takes no account of the statutory directive to give effect to the principles of the Treaty of Waitangi.

(d)In accordance with the tikanga of Ngāti Tama (or, as some witnesses referred to it, Ngāti Tamatanga), death is a part of life. “Use of

24 See, for elucidation of these principles, Kevin Hille, Carwyn Jones and Damen Ward Treaty Law: Principles of the Treaty of Waitangi in Law and Practice (Thomson Reuters, Wellington, 2023) at [1.13].

resources” can be appropriate if the use is approached in a culturally appropriate way.

(e)ELI artificially separates road building activities from measures designed to address the effects of those activities (including ecological restoration works). However, in accordance with Ngāti Tamatanga, these matters go hand in hand; use cannot be divorced from the protocols or restrictions that apply to that use. Ngāti Tama submits these protocols or restrictions are an integral part of the activity, and are the means by which utu, a rebalancing and reciprocity in the environment, is achieved.

(f)The environment where the New Road is being built is degraded and wildlife is subject to significant predation there. In these circumstances, a broader view of the protective or conservation purpose in the Wildlife Act is required.

(g)In addition, some of the examples accepted by ELI as amounting to a conservation purpose (such as pest control, translocation, study, prevention of spread of disease) already recognise that, in some instances, the death of individual animals can be for a conservation or protective purpose when there are wider benefits for the species. Here, while the construction of the road may result in individual animal deaths, the package of measures proposed to address those effects (including habitat restoration, fencing, planting and in perpetuity pest management) will provide a species-wide benefit.

[53]   Ngāti Tama submits that in light of the Supreme Court’s decisions in Ellis v R and Smith v Fonterra,25 the Court of Appeal and Supreme Court may wish to reconsider the framing adopted in the PauaMAC5/Shark Experience litigation in relation to the required nexus between killing under s 53 and the protective purpose of the Wildlife Act.

25     Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239; Smith v Fonterra Co-operative Group Ltd [2024] NZSC 5, [2024] 1 NZLR 134.

Second (alternative) cause of action

[54]   ELI submits that its second and third causes of action are alternatives that only require determination if the Court does not uphold ELI’s first cause of action.

[55]   In ELI’s second cause of action, it alleges that even if the Director-General had power to grant the s 53 Authority, she was required to add conditions ensuring the protective purpose of the Wildlife Act was achieved as far as possible. ELI alleges that certain conditions in the s 53 Authority fall short of that standard:

(a)Waka Kotahi does not have to take steps to avoid killing protected wildlife, aside from several species for which specific protocols are in place;

(b)the conditions do not limit the number of animals that can be killed or circumstances in which, or reasons for which, they can be killed.

[56]   In respect of the second cause of action, ELI seeks declarations regarding the requirements of the Wildlife Act in general, as well as specific relief regarding the    s 53 Authority in the present case.

Third (alternative) cause of action

[57]   Under its third cause of action ELI alleges that, in granting the s 53 Authority, the Director-General relied unlawfully on what were described as off-setting conditions. ELI alleges that off-setting is not consistent with the purpose of the Wildlife Act.

Fourth and fifth causes of action

[58]   ELI’s fourth and fifth causes of action both concern the s 71 Consent. ELI submits that it did not originally set out in the present proceeding to raise issues about s 71. It only determined it needed to do so following what it describes as the “pivot in DoC’s position after this proceeding was commenced challenging the s 53 Authority, resulting in a further s 71 Consent being granted”.

[59]   In ELI’s fourth cause of action, it alleges that the s 71 Consent was unlawful to the extent it was retrospective. This cause of action is founded on the words “except with the prior consent of the [Ministers]”, in s 71.

[60]   Finally, in ELI’s fifth cause of action, it alleges that the Ministers’ decision- making in respect of the s 71 Consent was flawed. In particular, ELI alleges Ministers were advised Waka Kotahi had chosen a route for the New Road that was designed to minimise ecological effects, including on wildlife. However, ELI alleges there was insufficient evidence of the effects on individual animals and species of wildlife to permit Ministers to reasonably conclude that the route chosen would minimise effects on wildlife. Accordingly, ELI alleges the s 71 Consent does not achieve the purposes of both the Wildlife Act and the GRP Act to the greatest extent possible. ELI seeks a declaration that the s 71 Consent is unlawful and of no effect and asks the Court to set it aside.

[61]   In relation to the fifth cause of action, ELI alleges the s 71 Consent had the following defects:

(a)Both Ministers were briefed on the s 71 Consent after road construction had already begun.

(b)The s 71 Consent process resembled a “rubber-stamping exercise”. That is because key decisions had already been made and construction was already well underway. Although Ministers were expressly asked to put the s 53 Authority out of their minds, they failed to put out of their minds the fact that the New Road was already under construction. That means that Ministers closed their minds to, and failed to consider other options to achieve the purposes of both Acts to the greatest extent possible.

(c)The Minister of Conservation was not presented with alternative options that might have better achieved the purpose of the Wildlife Act. Accordingly, ELI submits there was no genuine opportunity to consider other measures (such as an alternative route) that might have minimised

harm or loss to animals. That was because the Minister had no prior involvement with or decision-making regarding the New Road and was not presented with the alternative options for consideration.

(d)The assessments undertaken in the s 71 Consent process weighed the protective purpose of the Wildlife Act against the construction of the New Road itself. There was no analysis of whether the construction of the particular route chosen achieved that purpose to the fullest extent possible. There was no assessment of whether the New Road best gave effect to that purpose in the Wildlife Act. Rather, the similarities with the s 53 process indicate it was effectively a fait accompli.

(e)There should have been genuine prior consent sought, such that options remained on the table for Ministers to be satisfied that the purpose of the Wildlife Act was to be achieved to the greatest extent possible.

(f)Waka Kotahi did not choose a route designed to minimise ecological effects. The sub-criteria under the terrestrial ecology evaluation do not include a criterion for protected wildlife, only a criterion for threatened species which is only a sub-set of all wildlife. Just because the option

(e) that was approved had the lowest impact on terrestrial ecology does not necessarily equate to the highest protection for wildlife as the Ministers were advised.

(g)Ministers were given stale, inaccurate and incomplete information in their briefing, related to changes to the route since the previous multi- criteria analysis increasing the extent of earthworks required, native vegetation loss, permanent stream loss and irreversible loss of high value invertebrate habitat. ELI submits that these changes to the project since the multi-criteria analysis had been carried out resulted in the Ministers making a material mistake of fact. That is because the true ecological effects of the actual route being built for the New Road were not assessed by the Ministers.

My assessment

First cause of action

[62]   The Crown now accepts that the only lawful “permission pathway” under the Wildlife Act for acts in respect of wildlife as part of the project to build the New Road is s 71. The Crown consents to a declaration and order quashing the s 53 Authority on the basis that it is unlawful to the extent those activities in respect of wildlife are authorised under the GRP Act and consent for those activities is required. However, while the Crown concedes the s 53 Authority should not have been granted, the Crown only consents to such an order being made prospectively.

[63]   I do not doubt the availability of prospective-only relief in deserving administrative law cases,26 but it is not merited in the present case.27 The only justifications offered were that the respondents’ error in relying on s 53 was eventually corrected under s 71, and that exposing Waka Kotahi (and potentially) Ngāti Tama to Wildlife Act prosecutions would be undesirable. I am not persuaded that either of these reasons justifies withholding relief. As the Crown accepts, any prosecutions for activities carried out in reliance on the s 53 Authority would be “highly unlikely”.

[64]   Moreover, I do not accept the Crown’s submission that were it not for s 71, the s 53 Authority would be lawful.

[65]   In Shark Experience the Supreme Court held, based on its title and scheme, that one of the Wildlife Act’s principal purposes is the protection of wild animals,28 and that the Act is the principal means by which wildlife in New Zealand, including many of its most endangered species, is protected.29

[66]   The Court of Appeal also focused on the underlying activity in which the interaction with wildlife was occurring, in that case, a commercial adventure tourism

26 See Philip A Joseph KC, Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2021) at 1263, citing R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19 (HL) at 26–27, 29, 35–37; National Westminster Bank plc v Spectrum Plus [2005] UKHL 41, [2005] 2 AC 680; Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [129]–[148], [154].

27 At 1264.

28 Shark Experience Ltd v PauaMAC5 Inc, above n 7, at [44].

29 At [45].

activity with an anthropocentric purpose.30 The Court observed that “[a]ny scientific or other insights about the sharks that may be gained from the activity are ancillary to the primary human purpose of private or personal entertainment”. The Court found that allowing the interaction provides no protective benefit to the shark, so there was no justification for the risk. Ultimately, the Court considered that the Wildlife Act’s purpose can be better achieved if s 53(1) was read to exclude shark cage diving.

[67]   Following our highest Courts’ interpretation of s 53, I accept ELI’s submission that to the extent that the s 53 Authority purported to authorise Waka Kotahi to kill sch 5 protected wildlife during construction of the New Road, it purported to authorise harmful interactions between humans and wildlife. The s 53 Authority did not provide any protective benefit to the wildlife it purported to authorise to be killed. Nor would the killing of that wildlife provide any protective benefit to other wildlife. Therefore, regardless of s 71, the s 53 Authority was inconsistent with the primary purpose of wildlife protection in the Wildlife Act.

[68]   Further, I do not accept the submission (advanced mainly by Waka Kotahi and Ngāti Tama) that furtherance of the Wildlife Act’s purpose is to be gauged in connection with the overall scope of the Te Ara o te Ata project to build the New Road, including any conditions imposed by the Director-General as regulator. Moreover, I do not accept the Crown’s argument that s 53, as interpreted by the Supreme Court, operates at the level of population viability or “overall effect”.

[69]   Rather, under the current law, a direct nexus must be established between each act of proposed killing of wildlife, viewed in isolation, and the protection of wildlife (being the primary purpose of the Wildlife Act). To illustrate this nexus, in PauaMAC5 v Shark Experience, the Court of Appeal gave the following examples:31

Without in any way attempting to be definitive or exhaustive, the focus of authorisation is likely to be primarily scientific research, although it might include capture for the purpose of removal to a safer environment (for the shark), the culling of diseased animals that might threaten the larger population or to address over population.

30     PauaMAC5 v Director-General of Conservation, above n 16, at [58] per Williams J, writing for himself and Cooper and Clifford JJ.

31 At [53].

[70]The Court then added:32

… only those instances of “catch[ing] alive or kill[ing]” that promote the Act’s wider purpose may be authorised.

(Emphasis added.)

[71]   Thus, it is each individual activity that is authorised that needs to be consistent with the statutory purpose in order to be lawfully authorised under s 53, not merely the overall project. In essence, that is a primary distinction between the narrow focus of s 53, compared to the broader authorisation powers in s 71.

[72]   This distinction underlies ELI’s acceptance that s 53 authorises catching wildlife alive to avoid it being killed during the New Road’s construction. Catching of animals is intended to avoid the animals being killed, which is clearly protective of the individual animal that is saved from the bulldozer or chainsaw. Section 53 will also authorise the killing of wildlife where (as in the example given by the Court of Appeal), that specific killing promotes the Act’s purpose because it protects the population that the animal is part of, for example in the case of killing a diseased and contagious animal.

[73]   I do not accept the Crown’s submission that s 53 can authorise the killing of wildlife for any purpose merely if the viability of populations of wildlife that any animals killed belong to are otherwise being maintained or improved through some other related or unrelated action. Under that approach there would be an unacceptable lack of certainty in terms of which populations would need to be maintained (e.g. would it be the population immediate to the locality of the activity, or would it be a regional or nationwide population?) Adopting the Crown’s approach would also lead to questions about the extent of nexus required between the purpose for which the wildlife is to be killed and the reason why relevant populations are being maintained or improved. In other words, how much does the killing need to be the thing that supports the wildlife population?

[74]   Critics have long pointed to s 53’s defects, including the lack of criteria contained within what is apparently a broad discretion, the lack of any public

32 At [59].

participation rights or any right of appeal from the Director-General’s decision.33 Moreover, the same critics also point out the lack of any express requirement in s 53 for the Director-General to consider Te Mana o te Taiao – Aotearoa New Zealand Biodiversity Strategy 2020.

[75]   These considerations further disincline me from adopting the Crown’s suggested approach of extending the s 53 authorisation power beyond that of ensuring distinct or singular interactions with animals will further the wildlife protective purpose. Rather, in my view, each individual act of catching alive or killing wildlife, viewed in isolation, needs to promote or at least be consistent with the purpose of protecting wildlife.

[76]   I accept, however, that the purpose of the underlying human activity in respect of which the interaction with wildlife is occurring need not itself be primarily or solely aimed at protecting wildlife, so long as each interaction with an animal has a protective purpose. Section 53 is not a means for regulating activities as such; rather its focus is on the reason for killing the individual animal.

[77]   For example, a private  entity might be authorised under s  53  (or potentially s 54 as I will explain below) to cull a species of protected wildlife where overpopulation is threatening vegetation, other protected wildlife and the welfare of the overpopulated species itself. Where there are multiple purposes, it is essential that the Wildlife Act purpose can be pursued in a way that will not be compromised by another purpose.34 So, the s 53 authority would be lawful in that instance only if each animal was killed to protect wildlife, even if other purposes (such as protecting vegetation and the profitability of the entity doing the culling) are served as well.

[78]   ELI submits the killing of protected wildlife for the purpose of constructing a road is not authorised under s 53, because this would not promote the Wildlife Act’s purpose as the killing of each animal would not be protective of wildlife. In other

33 See Teall Crossen  “Should  snails  have  standing?:  towards  an  Endangered  Species  Act  for New Zealand” (2007) RMJ 12 at 17; Deirdre Koolen-Bourke and Raewyn Peart “Conserving nature: Conservation Reform Issues Paper” Environmental Defence Society, 2021 at 116.

34 See Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [53].

words, the required nexus between each instance of the authorised activity and the protective purpose of the Wildlife Act would not exist. I consider this must be correct.

[79]   I therefore accept ELI’s submissions that killing protected wildlife during construction of the New Road lacks the required nexus to the primary purpose of the Wildlife Act.

[80]   It follows that the s 53 Authority is ultra vires the Wildlife Act to the extent it purports to authorise protected wildlife to be killed during construction of the New Road.

[81]   I also accept ELI’s submission that looking at the broader activities that may be associated with the construction of the New Road does not ameliorate an otherwise non-protective s 53 authorisation. Rather, the Court still needs to assess whether the killing of wildlife itself is protective of that wildlife. I agree with ELI’s submission that cannot be said to be the case in respect of the purported s 53 Authority in respect of the New Road.

[82]   Accordingly, I uphold ELI’s first cause of action. To the extent it purported to authorise Waka Kotahi to kill protected wildlife during construction of the New Road, the s 53 Authority was inconsistent with the protective purpose of the Wildlife Act. I observe that this conclusion is also consistent with the advice DoC gave Ministers, as described above, when advising them of the need for the s 71 Consent.

[83]My decision in respect of the first cause of action reflects:

(a)The Crown’s concession that the s 53 Authority was unlawful as it applied to the New Road, given the applicability of s 71 to the project;

(b)The     Court  of     Appeal    and    Supreme     Court’s    decisions    in

PauaMAC5/Shark Experience precedents which I am bound to follow.

[84]   The presence of these factors make it unnecessary for me to go further and make a declaration along the lines of that sought by ELI that DoC’s power to authorise the killing of protected wildlife under s 53 is limited to conservation purposes, and

does not include authorising the killing of wildlife to achieve some other human endeavour (like building a highway).

[85]   However, even if I were not bound by PauaMAC5/Shark Experience, I would be disinclined to make such a broad declaration as ELI seeks. While not directly relevant to the present case, an important element of the scheme of the Wildlife Act is s 54, which might be regarded as the companion provision to s 53. Section 54 permits the Director-General to authorise hunting or killing of wildlife that is causing damage to stock, crops, chattels or other wildlife:

54 Director-General may authorise hunting or killing of  wildlife  causing damage

(1) The Director-General, on being satisfied that injury or damage to any person or to any land or to any stock or crops or to any chattel or to other wildlife has arisen or is likely to arise through the presence on any land of any animals (whether absolutely protected or not), and whether or not the land is a wildlife refuge or a closed game area, may authorise in writing the occupier of the land, or any officer or servant of the Department, or any other person, to hunt or kill, or cause to be hunted or killed, or to catch alive for any specified purpose any such animals, or to take or destroy the eggs of any such animals, subject to such conditions and during such period as may be specified in the authority.

…

(Emphasis added.)

[86]   It seems to me that the example given by the Court of Appeal for a situation in which killing of wildlife might be authorised under s 53 — “the culling of diseased animals that might threaten the larger population or to address over population”35 — is actually a situation that may be covered by s 54 if the words highlighted in the extract above extend to such actions.

[87]If so, then one might ask what is s 53 intended for?

[88]   The legislative history may offer some clues. The explanatory note for the Wildlife Bill states that cl 53 (which became s 53):

35     PauaMAC5 v Director-General of Conservation, above n 16, at [53].

…extends the existing provisions of section 31 of the Animals Protection and Game Act 1921-22 relating to the taking or killing of animals for scientific and other purposes, by enabling the Secretary to give his consent to the taking or killing subject to any of the conditions specified in subclause (3).

[89]   Section 31 of the Animals Protection and Game Act 1921 empowered the Minister to authorise persons to “catch or take” any absolutely protected animal for the purpose of distributing in some other part of New Zealand, for any scientific purpose, or for another purpose approved by the Minister. Section 31 did not permit killing to be authorised. However, under s 32 of the 1921 Act, animals could be killed where there was injury or damage to land.

[90]   By extending these existing provisions in 1953, Parliament must have intended that s 53 of the Wildlife Act would not simply replicate a power that was already available under s 54. Accordingly, if s 54 already covers situations where an animal is killed in order to protect other animals in a population, then s 53 must have had some other role. On this analysis, perhaps s 53 does have some scope for allowing a more holistic approach of assessing the overall protective purpose of an activity, rather than narrowly focusing on the individual animal that is killed.

[91]   However, these questions do not need to be resolved in the context of the present case. I am of course bound by PauaMAC5/Shark Experience. Further, I have reservations about embarking on a needlessly ambitious attempt to interpret the scheme of the Wildlife Act. The Supreme Court’s observations that the overall statutory scheme of the Act has lost coherence given its frequent amendment over the 60 plus years since its enactment give me further cause to hesitate.36

[92]   I also accept Ngāti Tama’s submission that the principle of active protection requires consideration of Ngāti Tama’s interests when making a decision on a s 53 authority (or s 71 consent) affecting a taonga of Ngāti Tama.37 I consider Ngāti Tama presents a cogent basis on which this nexus may be reconsidered. However, in light of the case law binding me, any recalibration of the appropriate legal test under s 53

36     Shark Experience Ltd v PauaMAC5 Inc, above n 8, at [29]. See also PauaMAC5 v Director- General of Conservation, above n 16, at [50].

37     Ngāti Tama cites Ngāi Tahu Māori Trust Board v Director-General of Conservation, above n 21, at 560.

will need to await any further assessment by the Court of Appeal and perhaps also the Supreme Court.

[93]   In the meantime, I am bound by the clear and unambiguous statements made by those Courts in PauaMAC5/Shark Experience that a direct nexus is required between killing authorised under s 53 and furtherance of a wildlife protective purpose. Under the law binding this Court, I am unable to reinterpret the Act, whether or not by reference to tikanga, to achieve a more holistic or utilitarian indirect approach to assessing the Wildlife Act’s purpose and its relevance to s 53 authorisations.

[94]   The Crown argued that, despite the s 53 Authority being unlawful, no relief should follow as the issue is moot. I do not accept the issue has become moot. As Waka Kotahi sought to uphold the s 53 Authority, it was not moot, at least in its eyes. Moreover, I disagree with the Crown’s position that, but for s 71, the s 53 Authority would have been lawful in respect of killing wildlife. Therefore, the Court’s decision as to the scope of s 53 and the consequences that will ordinarily follow should an authority outside lawful scope be issued, will be relevant to other instances where s 53 authorities are in place or are sought, especially if the Director-General purports to issue them to authorise the killing of protected wildlife.38

[95]   Accordingly, I set the s 53 Authority aside to the extent that it purported to authorise Waka Kotahi to kill protected wildlife identified in sch 5 of the Authority during construction of the New Road.

[96]   ELI is correct, as a general proposition, that s 53 does not empower the Director-General to grant authorities for activities that involve the hunting or killing of absolutely and partially protected wildlife, where that is not consistent with the Wildlife Act’s protective purpose.

[97]   Likewise, whether the Court of Appeal and Supreme Court at some point decide to recalibrate the PauaMAC5/Shark Experience findings in light of tikanga, along the lines of submissions made by Ngāti Tama, will be for those Courts if this or

38     See Baker v Hodder [2018] NZSC 78, [2019] 1 NZLR 94 at [32]; and R v Gordon-Smith [2008] NZSC 56, [2009] 1 NZLR 721 at [16].

another suitable matter is put before them. For the purposes of the current proceeding it suffices to say that a holistic tikanga-based approach may be a better fit for the      s 71 consent process as it stands, as that provision, as currently interpreted, allows a more holistic range of factors to be incorporated in decision-making.

[98]   On behalf of ELI, Mr Bullock conceded killing of wildlife to promote cultural purposes may be consistent with the protective purpose of the Wildlife Act if such practices were manifestations of kaitiakitanga in respect of te taiao. The circumstances of the present case did not allow that concession to be fully explored. But one of the reasons I do not consider it necessary or appropriate to make a general declaration as sought by ELI in respect of activities involving hunting or killing of absolutely and partially protected wildlife is to allow Mr Bullock’s submission to be explored further in another case where the facts and context are more appropriate for that to occur. In any event, in the present case there was insufficient evidence to fully explore whether killing protected wildlife, as purportedly approved in the s 53 Authority, promoted a cultural purpose or was a manifestation of Ngāti Tamatanga.

[99]   Accordingly, the declaration I consider appropriate in these circumstances is that the s 53 Authority dated 22 December 2021 entitled “Wildlife Act authority for wildlife located on non-public conservation land” is unlawful, to the extent it purported to authorise Waka Kotahi to kill sch 5 protected wildlife during construction of the New Road. I set aside the “kill” aspect of the s 53 Authority.

Second and third causes of action

[100]   As the Court agrees with ELI’s primary position that it was unlawful for the Director-General to grant a s 53 Authority to permit Waka Kotahi to kill protected wildlife in the course of constructing the New Road, it is unnecessary to then consider ELI’s second and third (alternative) causes of action which concern the terms of the  s 53 “kill” Authority.

Fourth and fifth causes of action: reconciling s 53 and s 71 of the Wildlife Act

[101]   The same limits on activities permissible under s 53 of the Wildlife Act do not apply to activities permissible under s 71. Section 71 is a savings provision concerning

the exercise of powers in the 16 Acts listed in sch 9 of the Wildlife Act. The Acts generally provide powers regarding public infrastructure (e.g., building highways, railways and tramways) and other acts of public importance (such as forest fires, rabbit control and mining). Section 71 provides that, except where the Wildlife Act otherwise provides, nothing in that Act “shall derogate from any provision” of the listed Acts.

[102]   As the Crown submits, there are many activities that will involve incidental interaction with wildlife that are not empowered under an enactment listed in sch 9, for example, private developer subdivision works and small-scale developments on private land that are not public works. Although DoC currently receives applications for authorisation under s 53 in respect of such activities, kill authorisations may not be granted under s 53 except where each instance of the authorised activity has a nexus with the protective purpose of the Wildlife Act.

[103]   Section 71 was considered in Save Happy Valley Coalition Inc v Minister of Conservation.39 That case involved a consent given to Solid Energy New Zealand Ltd to move a critically threatened species of large snails, Powelliphanta augusta, to allow mining on the Stockton Plateau. The consent also allowed the killing of snails that were not found for relocation and inevitably would be killed by the intended mining.40

[104]   Simon France J explained that the s 71 consent requirement arises only if an applicant already has authority conferred under one of the other Acts listed in sch 9:41

Section 71 then prescribes that, whilst the Wildlife Act is not to derogate from that authority, the Minister in charge of the other statute, and the Conservation Minister, must give prior consent if the authorised activity will be in “respect of any wildlife”.

[13] The section therefore arises from a context where two Acts are involved, and where it is recognised that some balancing of competing considerations will be required. The obvious reading is that the statute requires the two relevant Ministers to come together and agree on what is to happen.

39     Save Happy Valley Coalition Inc v Minister of Conservation HC Wellington CIV-2006-485-1634, 8 December 2006.

40 At [2].

41     At [12]–[13].

[105]   Simon France J rejected as misconceived the plaintiff’s contention that, in making their decision under s 71, the policy goals of the Wildlife Act were necessarily the predominant consideration for the Ministers and that if it were not possible to read the purposes of the two Acts consistently with one another than the purposes of the Wildlife Act must prevail.42 He accepted the Ministers must have regard to the purposes of both Acts, determining:

… where the balance lies between the two Acts is a matter for the decision- maker subject to the usual constraints such as reasonableness. It is not necessarily a question of balancing the policies in the sense of compromise; in a given case appropriate conditions might allow both purposes to be fully realised. Where the balance lies is inevitably a case specific inquiry that will require consideration of the extent to which the conditions can minimise the threat to wildlife, the importance of the wildlife in issue, and the significance of the other activity…

[106]   Simon France J upheld the s 71 consent to move or kill the snails and summarised the context of s 71 in the following terms:43

… a body with an existing authority under a statute to undertake an activity comes to the two relevant Ministers to seek consent, with conditions if needed, to pursue that activity even though it will affect wildlife. The purposes of both Acts must be relevant to any consent decision and to the imposition of conditions. Which purpose would prevail if there was an unremediable conflict would be a case-specific inquiry.

[107]   Simon France J considered that the decision-making tree placed before the Ministers “identified a correct pathway for considering the two Acts in question”.44 The decision-making tree acknowledged that in deciding, the Ministers were required to weigh alongside each other the detriments to wildlife and the countervailing benefits in terms of the policy of the Coal Mines Act 1991. The Ministers were advised that if they considered the proposed mining activities would have detrimental effects on snails then they should consider whether any conditions could be imposed that would mitigate those effects. The Ministers were also advised that the greater the detriments in terms of wildlife protection, the greater the countervailing benefits would need to be under the Coal Mines Act.

42 At [31].

43 At [32].

44 At [34].

[108]   In the present case, Ministers were advised that their joint consent was required under s 71 in place of the s 53 Authority and that where an act is performed or an authority is exercised in respect of any wildlife under an enactment listed in sch 9 then joint consent of the Minister of Conservation and the Minister responsible for the enactment listed in sch 9 is required under s 71 rather than authority under s 53.

[109]   I have not set aside the s 53 Authority entirely (apart from the kill authority aspect of it) because such relief was not sought by the applicant. However, I record that I consider the advice given to Ministers is correct: given State highway construction and maintenance is, at least in part, undertaken under the GRP Act, s 71 was the appropriate authorisation power for use in the present case for acts performed under that Act in respect of protected wildlife, rather than s 53. Where s 71 applies, an authority under s 53 is not a valid substitute for consent under s 71.

[110]   Accordingly, my overall assessment is that the Crown respondents used the wrong power and, in granting the s 71 Consent 10 months after construction of the New Road began, the third and fourth respondents failed to ensure the s 71 Consent was in place early enough.

Fourth cause of action

[111]   The fourth cause of action concerns the retrospectivity of the s 71 Consent granted on 31 August 2023 in respect of protected wildlife authorising Waka Kotahi to undertake activities under the GRP Act. The s 71 Consent incorrectly stated its commencement date was 1 January 2023. In his affidavit affirmed on 21 June 2024, Christopher Williams deposes that this was an error and that officials were only intending that Ministers provide consent from the date of their decision. Mr Williams deposed that officials were in the process of seeking amendment to that consent so that the start date was changed to 31 August 2023.

[112]   On the Friday before the hearing, the first respondent filed an affidavit annexing an amended s 71 Consent. The amendment was made using powers that the Ministers of Conservation and Transport had delegated to the Director-General of Conservation and the Secretary for Transport respectively. Those officials signed the

amendment  on  27  and  29 August  2024  respectively.     The commencement date recorded in the operative amended s 71 Consent is now 31 August 2023.

[113]   ELI seeks a declaration that the original s 71 Consent is unlawful and is of no effect to the extent that it purports to grant consent to acts occurring before it was granted.

[114]   In my view, such a declaration is not warranted, in light of the Director- General’s position that the original commencement date was a mistake and its acknowledgment that the erroneous commencement date had no legal effect. A remedy must be capable of serving a useful purpose — they are granted to correct injustices, not to give satisfaction.45

[115]   ELI also seeks a declaration that a consent granted under s 71 of the Wildlife Act cannot authorise acts in respect of wildlife prior to the granting of the consent.

[116]   I do not intend to make a declaration concerning retrospectivity in the abstract as this is not an issue that requires determination on the facts of the present case, in light of the Director-General’s concession and corrective action. I observe that I do not seen any basis under s 71 for a retrospective consent to be granted. That section expressly requires the “prior consent” of the Minister of Conservation and the Minister charged with administration of the second Act in question. The relevance of any pre- existing (but unlawful) s 53 Authority to the intention element of any offence would remain to be determined on the facts of any specific prosecution. It is not appropriate to pre-empt that by making a declaration that might risk prejudicing the integrity of subsequent criminal proceedings and might usurp the role of the fact finder.46

[117]Accordingly, the fourth cause of action is dismissed.

45     Philip A Joseph KC, above n 26, at [27.4.2(7)], citing R v Aston University Senate, ex parte Roffey [1969] 2 QB 538 (DC) at 551.

46     Shark Experience Ltd v PauaMAC5, above n 7, at [110]–[126].

Fifth cause of action

[118]   As already stated, in the fifth cause of action, ELI alleges the Ministers of Conservation and Transport closed their minds to, and failed to consider, other options to achieve the purposes of both the Wildlife Act and the GRP Act to the greatest extent possible. In particular, ELI alleges Ministers failed to consider whether an alternative route might better give effect to the purposes of the Wildlife Act, without prejudicing the purposes of the GRP Act.

[119]   ELI also alleges that to the extent the Ministers considered an offsetting condition or any “net gain in biodiversity supported the purpose of the Wildlife Act then that was incorrect as a matter of law”.

[120]   Further, ELI alleges that Waka Kotahi did not choose a route for the New Road designed to minimise ecological effects, including on wildlife and that there was insufficient evidence on the effects on individual animals and species of wildlife such that, ELI alleges, it could not be concluded that the route chosen would minimise effects on wildlife. Accordingly, ELI submits that the s 71 Consent does not achieve the purposes of both Acts to the greatest extent possible.

[121]   I do not accept ELI’s submissions in relation to the fifth cause of action, for the following five reasons. These reasons broadly correspond with the submissions on behalf of the first, third and fourth respondents, which I adopt as my reasoning.

[122]   First, I accept the respondents’ submission that, in referring to an “act or authority” that is “performed or exercised” under one of the sch 9 Acts, including the GRP Act, s 71 of the Wildlife Act envisages a separate process for authorising that other act or authority, under that other legislation, rather than the Wildlife Act.

[123]   In the present case, construction of the New Road has been authorised under the GRP Act, as well as under the Resource Management Act 1991 and the consenting process undertaken under that legislation, which also involved extensive litigation in the Environment Court and the High Court.

[124]   I accept the Crown’s submission that Waka Kotahi’s powers under s 61(4) of the GRP Act are sufficiently broad to cover Waka Kotahi’s activities as they affect wildlife as part of the project to build the New Road, which include to catch alive and incidentally kill wildlife as necessary during construction.

[125]   This concept was discussed by the High Court in the Save Happy Valley case.47 Simon France J upheld the consent and summarised the context of s 71 in the terms set out above at [106] under which the purposes of both the Wildlife Act and the sch 9 Act are relevant to the Ministers’ decision.

[126]   In that context, the first, third and fourth respondents submit that neither the Minister of Transport nor the Minister of Conservation were involved in determining the route that was chosen for the New Road. Rather, the route was chosen under an “existing authority” for the purposes of s 71. Accordingly, it was unnecessary for the full range of matters considered in selecting that route to be recanvassed in the context of briefing the Ministers for the s 71 Consent. Rather, their task was to consider the existing route that had been selected for the New Road and to evaluate it against the purposes of both Acts in deciding whether to grant consent and in respect of the imposition of conditions imposed.

[127]   Second, I accept the Crown’s submission that if the Ministers were expected to consider alternative routes as part of their analysis under s 71, that would incorrectly elevate the effects on wildlife as the primary consideration for route selection. Moreover, I accept that having Ministers second-guess the chosen route for the New Road would cut across the role of Waka Kotahi as final decision-maker (subject to any appeal to the Environment Court) as to the designation for a roading project.48 As the Crown’s submissions point out, the Minister of Transport cannot direct Waka Kotahi in relation to its statutorily independent functions. It would therefore be inappropriate for the Ministers to indirectly chose the route for the New Road through s 71. Rather, the Crown submits that the Ministers properly considered the route that was selected in terms of the effects on wildlife expected to result from selection of that route. That then formed part of the Ministers’ weighing exercise under s 71. As the Ministers were

47     Save Happy Valley Coalition Inc v Minister of Conservation, above n 39.

48     Resource Management Act 1991, s 168.

advised that it was open to them to approve, decline or defer deciding to grant the s 71 Consent, their decision (if it had been to decline consent) may have had implications for whether Waka Kotahi could proceed with the selected route for the New Road or whether it needed to consider alternatives. There is no evidence to support ELI’s allegation that the Ministers closed their minds to their ability to decline or defer deciding to grant consent under s 71.

[128]   Third, I do not accept that the fact that construction of the New Road had commenced, establishes pre-determination by the Ministers. I reject the submission that the Ministers had no option other than to provide their consent. As the Crown points out, the scheme of s 71, which assumes actions have or will be taken under other legislation, acknowledges that various “key decisions” would already have been made regarding the activity authorised by the relevant sch 9 Act.

[129]   Likewise, I accept that the similarity in conditions between the s 53 Authority and the s 71 Consent does not imply or support any pre-determination. Rather, it is unsurprising similar conditions would be recommended to the Ministers to ensure as best as possible the purpose of the Wildlife Act would be met in a way which also achieves the purpose of the GRP Act. I accept therefore that earlier consideration for the purposes of that s 53 Authority and its conditions can be adopted in Ministers’ consideration of the s 71 Consent as part of their assessment. In the present case, I accept that the Ministers validly decided the purposes of both Acts would be best met by imposing the same conditions as had been imposed in the s 53 Authority.

[130]   Fourth, in my assessment, the briefing the Ministers received is thorough and comprehensive. ELI criticised para [65] of the briefing paper, which states:

… the project will affect a range of wildlife including herpetofauna, avifauna and bats. Waka Kotahi chose a route designed to minimise ecological effects, including effects on wildlife, and has proposed conditions to mitigate the effects on wildlife, acknowledging there will be considerable residual effects on protected wildlife, as summarised above. The biodiversity offset and mitigation package described above was developed to address all potential residual effects.

[131]   ELI particularly criticises the use of the word “minimise” in this paragraph as it says this does not accurately reflect what occurred. However, I do not accept the

validity of this criticism. Considering the extensive decision-making process that went into selection of the preferred route for the New Road, it is clear that minimising ecological effects was a goal of the design. However, other considerations were sensibly also at play, including the route’s overall cost and constructability. There is no justification for interpreting s 71 as requiring wildlife protection in absolute terms or at any cost.

[132]   I do not consider that paragraph [65] of the briefing paper implies that ecological effects would be minimal. Rather, the use of the word “minimise” is a relative rather than an absolute expression, indicating design attempts to reduce ecological effects to the greatest extent possible considering the overall project and its competing considerations. Neither the Hon Willow-Jean Prime as Minister of Conservation nor the Hon David Parker as Minister of Transport at the relevant time suggest in their evidence that they understood Waka Kotahi chose the route that would have the least impact on wildlife. Nor were they bound to insist that it did so.

[133]   And fifth, although there were changes to the route since the time of the most recent multi-criteria analysis, I am not satisfied those route changes were material to the Ministers’ briefing or rendered it inaccurate. As Ms Cheng submitted on behalf of the first, third and fourth respondents, the ministerial briefing was correct on its own terms and did not rely on considering an earlier version of the route. In any event, I consider that:

(a)The Ministers were not required to consider alternative routes for the project to build the New Road.

(b)Such changes that had occurred were immaterial to the primary requirements of the Ministers to satisfy their obligations under s 71, namely to attempt to promote the purposes of the Wildlife Act and the GRP Act.

[134]The Ministers jointly:

(a)concluded that the s 71 Consent should be granted;

(b)considered the proposed conditions reduced the harm to wildlife as far as possible, without frustrating the construction of the New Road or undermining the purposes of the GRP Act;

(c)were satisfied that their assessments gave effect to the principles of the Treaty of Waitangi; and

(d)disregarded the prior authority granted to Waka Kotahi in relation to the New Road under s 53.

[135]   As Simon France J said in Save Happy Valley, where the balance lies between the Wildlife Act and the GRP Act is for the Ministers, acting reasonably.49

[136]   Accordingly, I dismiss the fifth cause of action. I do not consider that ELI has established the Ministers made an unreasonable decision under s 71. Nor has ELI established Ministers made a material mistake of fact concerning changes to the project since the multi-criteria analysis had occurred. I am also satisfied, and accept the respondents’ submission, that ecological effects of the actual route being built had been assessed and were properly placed before both Ministers in their consideration of the s 71 Consent.

[137]   It is important to be realistic about the timing of the s 71 Consent. The Director-General acknowledges that ideally this process would have commenced earlier, and prior to construction of the New Road commencing. But that is not a problem affecting the lawfulness of the instrument itself, although it may affect the lawfulness of any actions purportedly carried out under the earlier (retrospective) version of that instrument.

[138]   Considering the Director-General’s concession that the s 71 Consent did not operate retrospectively, a consequence is that any wildlife killed before commencement of the s 71 Consent would not be covered by that instrument or by the s 53 Authority. Those responsible for any such killings who are prosecuted may seek to rely on the defence in s 68AB(3) of the Wildlife Act (see above at [15]). That

49     Save Happy Valley Coalition Inc v Minister of Conservation, above n 39.

defence will succeed if any defendant proves that they did not intend to commit the offence and that they took all reasonable steps to ensure wildlife was not killed.

Conclusion

[139]   For the above reasons, I have upheld ELI’s first cause of action. I declare unlawful and set aside the s 53 Authority to the extent it purported to authorise the killing of wildlife. It is unnecessary to determine ELI’s second and third causes of action. ELI’s fourth and fifth causes of action are dismissed.

Costs

[140]   I encourage the parties to resolve any question of costs between themselves. If that is not possible then ELI may file a memorandum (no more than three pages) on costs within 15 working days of the date of delivery of this judgment. The respondents will have a further five working days to file a memorandum in response (also not exceeding three pages). I will then determine costs on the papers.

McHerron J

Solicitors:

LeeSalmonLong, Auckland for Applicant

Crown Law, Wellington for First, Third and Fourth Respondents Buddle Findlay, Wellington for Second Respondent

Holm | Majurey for Intervener